Forbes v. Caldwell

• Decision Date: 10 March 1888
• Citation: 39 Kan. 14,17 P. 478
• Parties: ROBERT FORBES v. JAMES CALDWELL et al
• Court: Kansas Supreme Court

17 P. 478

39 Kan. 14

ROBERT FORBES v. JAMES CALDWELL et al

Supreme Court of Kansas

March 10, 1888

Error from Shawnee District Court.

ACTION brought November 29, 1884, by Forbes against Caldwell and two others, to recover the N.W. 1/4 of the N.W. 1/4 of sec. 8 tp. 11, range 15 east, situate in Shawnee county. Trial by a jury at the September term, 1885, and verdict for defendants. The plaintiff brings the case here.

The land in controversy was allotted to Louise Pa-Ya, a member of the tribe of Pottawatomie Indians, under the supplemental treaty with that tribe made by the government on the 29th day of March, 1866. A patent was issued to her on the 21st day of August, 1868. Louise Pa-Ya conveyed the land to Josette Young on the 26th day of July, 1866; Josette Young conveyed it to Wm. C. Plummer, October 26th, 1866; Wm. C. Plummer conveyed it to Sarah Wright, September 22, 1879; Sarah Wright executed a bond for a deed to the land to one Tilden, September 22 1879; Tilden subsequently assigned this bond for a deed to James Caldwell, who with his wife and Sarah Wright are the defendants in this action. The plaintiff claimed title by virtue of a conveyance made to him by Louise Pa-Ya, or Shearer, she having married a man by the name of Shearer said conveyance having been executed on the 8th day of May 1880; also a deed from Theo. F. W. Taylor to him of date 23d June, 1880, for the same land; also a deed for the land from Peter Wash-Ka-Nah-Be, unmarried, and Se-Bus-Sun, unmarried, both heirs-at-law of Je Mahan, deceased, and William E. Thompson, of date May 24th, 1880. The first two were claimed to be the sons of Louise Pa-Ya, or Shearer, and Thompson claimed some interest in the land not disclosed in the evidence. The deed from Taylor to plaintiff in error was based on a previous conveyance from Louise Pa-Ya to Taylor, and this latter conveyance was ruled out by the trial court, and is not preserved in the record. The record contains evidence showing an occupation and improvement of the land by Plummer, Sarah Wright, Tilden, and Caldwell, for more than fifteen years before this suit was brought.

Judgment affirmed.

A. H. Case, and Chas. Curtis, for plaintiff in error.

Overmyer & Safford, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.

The pivotal question in this case is, whether the cause of action of the plaintiff in error is barred by the operation of the statute of limitation, which requires actions for the recovery of real property to be brought within fifteen years after the cause of action has accrued, this being such an action as is contemplated by the fourth subdivision of § 16 of the code of civil procedure. There are some preliminary rulings of the trial court which counsel for the plaintiff deem important enough to assign as errors, that deserve a passing notice. The first of these complaints is, the exclusion of the record of the quitclaim deed from Louise Pa-Ya, Mary McDowell and Pe-An-Ish, to Theo. F. W. Taylor, dated June 12, 1875; filed for record June 14, 1875. It was admitted that the original deed was not in the possession or under the control of the party offering the record of it. The record of the deed was objected to as being incompetent, irrelevant, and immaterial; and because there was no evidence of the execution of it by Louise Pa-Ya the record was excluded, and an exception noted. It is said that this was a material error It may have been so, but how are we to determine? The record does not contain a copy of the deed, neither is there any reason given for the ruling of the court. The deed may not have described the land in controversy; it may not have been acknowledged, or not properly acknowledged, or it may have disclosed other defects; so that any or all of these reasons or other reasons may have controlled the trial court. When the deed is not contained in the record, we cannot say whether its exclusion from the jury is error or not. We are bound to presume in this state of the record that it was not error.

The second complaint is, that the court below instructed the jury that they could arbitrarily reject, without cause or reason, the testimony of any witness. A cursory examination of the instructions given by the court will very easily determine that a small word is left out of the instructions, through inadvertence in making up the record. The first instruction is in these words:

"You are authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness; but it is your duty to carefully consider and so far as possible harmonize all the testimony in the case, upon a basis of truth; but if you are unable to do this, then you are authorized, and it is your duty, to reject such of it as you think not entitled to credit."

It is hardly necessary to call attention to the words preceding and those following the sentence in which the court says "You are authorized by law to arbitrarily reject, without cause or reason, the testimony of any witness," to show that the court did really say "You are not authorized by law to arbitrarily reject the testimony of any witness." The insertion of the word "not" at the proper place makes the whole of the first instruction consistent, harmonious, and legal, while by dropping it, the instruction is rendered inconsistent and illogical. We must assume that in an instruction which is universally given in a case tried by a jury, no such glaring error would occur, except through the carelessness of some one in making up the record. Especially is this so when it is apparent from the face of the instruction, and from the connecting words, that a mistake has been made in transcribing it.

The next complaint is respecting the fifth instruction given by the court, and that is as to the character of the adverse possession sufficient to constitute the bar of the statute. The court said that--

"If the defendants continuously occupied the land in controversy for fifteen years preceding the time of the commencement of the action, (29th day of November, 1884,) and after the 21st day of August, 1868, (the date of the patent to Pa-Ya,) under their several deeds of conveyance, and that such occupation of said lands by the defendants and those under whom the defendants claim to hold was...